Law and Morality

Law and Morality

In a morally ideal society, there are no laws. Everyone does what they should out of the goodness of their heart not fear of legal consequences. The whole apparatus of law does not exist—police, courts, lawyers, prisons, etc. It sounds wonderful: no one steals, murders, rapes, cheats on their taxes, speeds, or litters. Laws exist only because people are morally imperfect, evil, sinful, egotistical, greedy, depraved. They are not good in themselves, merely useful in curbing immoral behavior. We would do without them if we could. It is not a source of pride to be “a nation of laws” because this is an admission that the nation is not “a nation of moral right”; a better nation would be to be a “nation of nice”. Laws are an indication of moral weakness or wildness.

But it is worse than that. Consider a society wholly ruled by laws: everything that is morally wrong is covered by a law, perhaps a stringent one. In such a society no one does anything right because it is right but because it is illegal to do anything else. Or rather: morally right action is overdetermined motivationally, with prudence predominating. Suppose children are raised to respect the law but not instructed in morality; any innate morality they possess withers away in such an environment. Suppose that moral thoughts and emotions scarcely exist in this society, replaced by a fear of laws. Wouldn’t that be a horrible travesty of a human being? Wouldn’t it be spiritual death? What would art be like, or friendship, or love. Right and wrong would be swallowed up by legal and illegal. Human life would be one long battle with the law—evading it, being punished by it. Moral consciousness (conscience) would be replaced by legal calculation. It would be a kind of hell. A nation of laws and only laws is a dystopia of the soul. It would be a complete distortion or deformation of the soul, a destruction of human nature. If offered the prospect of such a society, we would do well to decline the offer. We might even prefer a lawless society if morality could thrive in it—morality being the thing that keeps that society on the rails.

I think we can enunciate the following (natural) law: the more a society is governed by laws, the less it is governed by morality. The more morality exists, the less need is there of laws. This is not a paradox but a logical consequence. Laws are proxies for moral precepts, so they lead to the attenuation of such precepts, even to the point of extinction. Morality goes extinct when laws take over its territory. Legal prudence takes over moral altruism. Conscience gives way to self-interest. Doing wrong is no longer an occasion for guilt and shame but merely for self-centered regret (“I wish I been more cunning”). And what happens to doing good? It degenerates into legality: the action wasn’t legally punishable. That is a pretty thin emotion and hardly a reason for (proper) pride. Laws eat away at the moral core of a person. They give us less scope for doing good and dilute our reasons for avoiding doing bad. Laws tend to destroy the moral center of human life by converting altruism into egoism. They are really bad if overly indulged in. And the point is not merely theoretical: casual inspection reveals that this process is going on right now. People in a certain country (I won’t name it) have lost their grip on morality and ceded it to the law. They have little ability to talk intelligently about morality, still less to engage privately in genuine moral reasoning. They are apt to be moral relativists or nihilists or simply oblivious to moral discourse. Fortunately, we still have a society in which law has not yet penetrated to every corner of human life, particularly personal life, but we are well on the way to fixing that problem. Imagine if marriage or friendship or parenting were subject to laws at every level—for example, marital rows are now illegal, friendships are legally enforced, and parents are forbidden by law from teaching their children right from wrong (the law has taken that over that function). As things are, morality no longer governs our business dealings or property rights or divorce proceedings; imagine a world in which the law also controls everything else that happens between people. Imagine if promise-breaking were punishable by six months in jail, if you are caught (otherwise you have nothing to worry about). The essential point is that morality and the law have quite different psychologies: morality is about our duties to others, altruism, not inflicting suffering, basic human decency—whereas the law is about self-interest, connivance, not getting caught, taking advantage of other people where it is legally permissible. You can evade the law, but you can’t evade morality—conscience will always “catch” you. We don’t need more laws (and less morality); we need fewer laws (and more morality). We need to educate our children in moral right and wrong not legal prohibitions. The ideal is not the universal rule of law but lawless moral integrity. We need to get rid of the law (defund it). Of course, I don’t mean go cold turkey on the law; I mean we should re-direct our efforts to make the law unnecessary. The law is at best a necessary evil not a desirable end in itself. It is not civilization but the decline of civilization, properly understood. Just think of the freedom you would feel if there were no law to fear, with all its errors and rigidity and injustice. It is a terrible burden on the human spirit not a welcome helping hand. No police, no judges, no prisons–just morally refined individuals doing what they know is right. Is that our future or just more legal overreach? We want a world without doctors because there is no illness; likewise, we want a world without lawyers because there is no wrongdoing (or just a tiny bit here and there). We want the unpaid hand of morality not the overpaid agent of the law. As it is, we have a faltering grasp of morality combined with a bloated system of law. The latter should be phased out as the former regains its authority (think of human society before laws but tightly controlled by morality). The problem is that as law gains more of a stranglehold on our psychology and behavior, the less power morality possesses, to the point where it becomes in danger of extinction. Morality and law are more rivals than collaborators, as things stand. The law is about what you can get away with; morality is about what must be done. I thus advocate moral maximalism and legal minimalism as a guiding principle.

A bonus is that we get a smaller state under the recommended social system. A large part of the power of the state derives from its legal apparatus: its legislature, its courts, its prisons. This is expensive to run and potentially oppressive. It enables the government to exercise power over its citizens, especially when allied with the military. A society with a minimal (or nonexistent) legal system is cheaper and less oppressive; morality costs nothing. The stronger morality is in a society, the less need there is for law, and hence the less need for a powerful government. Virtue undermines big government, or would if it were sufficiently prevalent (imagine if everyone observed speed limits from moral conviction). The difficulty is that most people tend to obey the law not their own conscience (if they have one), and that means they do what they think they can get away with not what they recognize as right. The optimistic view is that the law is just a passing phase in human history, destined to be replaced by a more developed moral sense; the pessimistic view is that the law will eventually strangle morality and leave something truly terrible in its place (law-abiding moral idiots).[1]

[1] It might be said that crime is part of human nature and therefore ineradicable. I think this is not true: morality is innate and therefore part of human nature, as has been persuasively argued; but crime is acquired and hence localized. Moral motivation is a genetic given, but criminal motivation is a result of upbringing (though there may be predisposing genetic factors). Crime can in principle be eliminated without revision of human nature, but morality is here to stay, short of genetic alteration. Laws are imposed, morality is original. This does not, however, prevent law from replacing morality psychologically, since genetic programs can be suppressed. There is nothing natural or inevitable about crime. Laws are not a necessary condition of good behavior.